Styles of judicial opinion in Tanzania.

 INTRODUCTION

In some provisions of the statutes there is a loop or gap intentionally left by legislators to give discretion powers to magistrates or judges to rule the matters before them in their own discretion but within scope made by a particular provision of the law. Discretion power to decision makers is the power granted to them by laws to enable them to decide disputes on their own knowledge, thinking, skills or experience on a matter in dispute, the laws are there to guide how a decision maker should decide within a given scope of the law but do not give complete guide on a specific result to be reached.

Some provisions of the law give minimum and maximum sentence on commission of a particular offence (years of imprisonment or fine to be paid), this gives a loop or gap to a magistrate or a judge to use his/her own knowledge to decide a matter before court in regard to different circumstances of a dispute itself. A decision maker here is limited only to minimum and maximum sentence provided by a statute, the remain is in his/her control or discretion.

Law without equity though hard and disagreeable, is much more desirable for the public good than equity without law. Equity without law creates vulnerable loop for every decision maker to legislate his own laws or rules in court of law which will lastly create an infinite confusion in legal cadre . Equity originated from equity courts in English countries. Equity was decisions of the equity court dis-regarded existing laws but which intended to give fair and just decision to people. In equity a person with a just claim cannot be left un-remedied just because common law denies him a chance to remedy, equity was not against common law but it was intended to cover up the gaps left by common law .

 

Judicature and Application of Laws Act  allow the use of common law and equity in circumstances necessary for it to be used. Professionals say that, for the time we have, it is very difficult and it is impracticable to apply equity since the legal system is now more developed than back days. A lot of things are now covered by existing laws (domestic and international laws) and there is no gap of that extent which will trigger application of equity. Some academicians have negative comments on a doctrine of equity, some of them thinks this mode of decision without regarding laws is against constitutions of many jurisdictions on the equality before law. All people are to be treated the same in the matter with the same subject matter,

treating them different without regarding laws creates double standards which gives different results to the cases of the same material facts.

STYLES OF OPINION

Magistrates and judges are given power to decide matters on their own discretion in some provisions of the law as explained in the second paragraph above, but a discretion is subject to limitations imposed by the laws where decision makers have to exercise their discretionary powers within limits imposed. The following are the known styles of opinion applicable in case a decision maker exercise discretion powers imposed on him;

Formal style, the Formalists maintain that every judicial opinion is capable of being broken down into a three-part equation. This equation consists of: the rules of law, "R"; the facts of the case, "F"; and the decision of the judge “D”, Formalist’s equation relies exclusively on the existence of the law. The rule of law, as established by precedent or statutory authority, is the uniform portion of this equation which guides the judge's decision. Once ascertained, the rule is then scrupulously applied to the case after the judge has examined and determined the relevant facts. The Formalist theory, therefore, places great faith in the comprehensive coverage of both common and statutory law, as well as the ability of a judge to pinpoint the applicable rule of law in developing a conclusion .

Since the conclusion is one manifested through the application of a mathematical formula, the conclusion should be reached by any other jurist using the same existing formula under similar circumstances. The Formalists also rely heavily on the existence and ascertainment of the actual facts of the controversy before the court. The implicit assumption is that the above process of factual and legal case analysis "is arrived at by a straightforward and airtight piece of deductive reasoning."" The Formalist does not anticipate or compensate for judicial imperfections or unique factual scenarios which may not be addressed by a particular rule of law. This process presumes that the facts and law are, indeed, capable of perfect dissection and not intertwined. The Formalist theory maintains that once the facts have been determined, the judge will find the appropriate rule of law and then make the correct decision.

Grand style, is a style of opinion in matter where there is no or there is unclear provision of the law. Grand style is an opinion addresses itself to policy (i.e., ideological considerations), a decision maker who is left free due to no existing law which covers a matter on hands may use grand style on making the opinion. In the opinion a decision maker must abide to existing policies and ideologies within a society, ruling on existing policies is much better because the policies will be considered as legal authorities for the decision made. Also, ideologies existing in the society are of useful when it comes to decide matter where there is no laws covers that particular topic on hands, a decision maker may consider ideologies or perspectives of members of the society on a matter to be decided and decision must correspond to society perspective so as to justify such decision .

Grand vs. formal style of decision making. The formal style represents the classical, formal method in arriving at conclusions in law. The grand style is an approach in which every current decision is to be tested against life-wisdom.

Realist style, utilization of potential precedents by making "distinctions" for those which seemed to contradict the desired results by identifying factual differences in a case. The Realist perspective offers many correct and helpful insights into the judicial decision-making process. Among these insights is the Realists' ability to portray a judge as a human being, rather than as an individual devoid of all emotions. Additionally, the Realists, are correct in their contention that many jurists do, in fact, craft legal arguments once they have determined how a case will be adjudged. The Realists' idea that the facts and law are not fixed variables, but are subject to layers of interpretation by individuals is also intuitive. Finally, the recognition that similar cases often procure diverse results depending on the presiding judge is, certainly, accurate . 

However, the Realists tend to speak in the extreme and have, consequently, dismissed the notion that some judges may decide cases in one fashion, while others may do so in an entirely different manner. Moreover, Realists do not account for the judge who may apply both methods of decision-making. Realists also minimize the role of the rule of law. The fact that legal rules do not always dictate the decisions of cases does not imply that those rules do not have significant, often controlling, influence during the decision-making process. Realists who minimize this influence are often portrayed as reactionaries who feel betrayed when they learn that the traditional theory of legal determinism is often false.

CONCLUSION

Decision makers are human beings and they can make serious wrongs in adjudicating matters due to their personal emotions, ideologies and perspectives. All in all, magistrates and judges must abide to the guidelines made by the law in deciding matters to avoid unjust decisions. Where there is no laws covering a particular situation, decision makers can make precedents.

REFERENCE

BOOKS

Shivji, I.G. “From the analysis of forms to the exposition of substances: the task of a lawyer intellectual”, in Vol.5 Nos. 1&2 EALR [1972]

Mukoyogo,M.C. Teaching Legal Method: A Personal note on challenges and problems in Effecting the Aim of legal Education in Tanzania” 1983(unpublished mimeo).

W. Twining/D. Miers, How to Do Things With Rules, 3rd Edn. London 1992 App. IV.

ONLINE SOURCES

https://www.lawteacher.net/free-law-essays/equity-law/equity-is-that-specific-body-law-essays.php

https://www.law.cornell.edu/wex/equity

https://guides.loc.gov/law-secondary-resources https://lawshelf.com/coursewarecontentview/legal-research-sourceshttps://guides.ll.georgetown.edu/secondary/encyclopedias